• Scope:  CASL covers not just anti-spam, but also anti-malware, anti-hacking, and through related amendments to other legislation, control of content and misleading information, as well as privacy of personally identifiable information (PII) (harvesting, dictionary attacks).
• Application/Jurisdiction:  CASL covers any message sent from or accessed by a computer in Canada (regardless of where the sender is located).  We are talking about all electronic messaging – email, instant messaging, SMS, social – plus anything new that comes along.  (Fax and voice are covered by Canadian do no call regulations.)
  1. Note that there is no minimum number of messages. So sending one message is enough to put you under jurisdiction of the law.
• Coverage:  CASL applies to commercial activity, defined pretty broadly.  For example, Brown said in the webinar, if you are promoting a person who normally promotes a product or service or business opportunity -  even if you are not specifically promoting that product, service or business opportunity in the message -  then your message is covered.  
  1. Note also that any message sent to seek consent is considered commercial – so you can’t send a request for consent. There are no exceptions for research studies, for example. “This will have to play out in the courts in deciding what is ‘commercial,’” Brown said.  “I would not be surprised if this was challenged.” As the law is enforced, Brown says, we will have more guidance on what is considered “commercial” under the Act.

1. Prior consent – defined as either express or implied.  Both are acceptable for all situations and of equal value.  (Implied does expire, though.)
   
   a.    Express: Must include clear notice and the provision of a set of prescribed info from subscribers when providing consent.   The owner or any authorized user of the email address must give the consent.
   b.    Implied:  The Act deems implied consent when there is an existing business relationship (e.g.: a customer who has purchased in the past two years, or if there is a contract or a subscription which has been active in the past two years.)
   c.    Once consent is implied (e.g.: a purchase), you generally have two years to send messages in compliance (or obtain an express opt in).  An express consent never expires, and is valid until the individual withdrawals consent.
2. Information
   
   a.    Must include contact information for the sender and the subscriber.  It is not clear in the law what this must include.
   b.    Regulations are expected to define this further.
3. Unsubscribe
   
   a.    An unsubscribe opportunity must be provided in all messaging and be available for  60 days post delivery.
   b.    Unsubscribe requests must have no cost, and use the same means by which the message was sent (unless impractical), either via replyto: or a link.
   c.    Must be processed “without delay” (and within 10 days) with no messages sent after the request.  This aspect may also be defined further with regulation.  “Senders must be able to demonstrate that you put forth a best effort to act on unsubscribe requests quickly, with the intent to stop messages,” Brown advises.

1. Check your lists. Do you have consent – and evidence of consent?  The burden is on the sender to prove consent.
2. Check location of subscribers where possible.  The law doesn’t care what the domain of the address is, or if the sender has a clue where the recipient is.  If the message is received on a computer in Canada then it applies.  If a sender does make an attempt to gather this data, This may be a factor in exercising the due diligence defense, where no one can be charged if they have shown due diligence to comply.  “Be sure you have a business objective in NOT complying with the Canadian legislation,” Brown says.  Note that reconfirmation of some permission grants may be necessary.
3. Watch for regulations re: content of messages. The regulations will clarify the information required when obtaining consent as well as when sending a message.

• Liability of service providers.  Telecom/ISPs are generally going to be exempt from liability under the anti-spam provisions where they merely provide the telecommunications service allowing the message to be delivered. However, it’s not clear if this applies to email delivery service providers.  “If you are merely providing a ‘do it yourself’ service and the customer manages the list and the unsubscribe, then it may be that the delivery provider is covered under the Telco exemption,” Brown says.  “This may be different if you offer a full service offering.”
• Ownership of the message, for example, placing ads in an editorial newsletter or providing the name of the email delivery vendor in the message itself is not directly addressed in the law.  “In my view it doesn’t make sense from any perspective to say that the ESP is sending on your behalf, for example identifying the ESP in the message,” Brown says.  There were a number of comments on this as the regulations were reviewed this past summer, and Brown hopes that some clarity will be offered in future revisions.
  1. This brings out the question of where an agency or service provider is vulnerable by trusting their client.  If the agency or ESP sends unsubscribe data to the sender, is the agency responsible if the client doesn’t take action?  “The law is broad, so if you are aiding or causing company to avoid compliance, then you are potentially responsible.  The way to manage risks like this is to inform your customers of their obligations, make sure you have the appropriate language in your agreements, and ensure the relationship agreements are clear who is taking responsibility for managing unsubscribes requests,” Brown advises.
• Transactional messages.  The legislation does not refer to “transactional” messages.   The law does cover some types of messages that could be considered transactional (e.g.: service notices or warranty information).    The law states that these types of messages require an opt out.  “This somewhat confuses the issue, by listing out messages that, in many cases, are likely not commercial electronic messages and therefore not covered by the Act to begin with,” Brown explained.
•   Point of Sale.  What if you ask verbally for consent at the POS?  Brown says that the original draft regulations from the summer declare that consent must besought in writing only.    However, this may be removed based on the amount of comments against it. “I would like to think that if you are entering this into a system form, and there is a date stamp, that this would meet the evidentiary burden under CASL,” he says.
  
  1. There is no legal requirement to send a follow up message, but “It’s always good idea to remind people of their subscription and why they have provided consent.  It’s more of a relationship issue than a compliance issue,” Brown says.
•  Is list rental dead?   A properly compiled permission based list is quite valuable, and the law does not forbid the rental of them.  “It’s not dead, but CASL places a higher onus on list owners and senders to make sure it’s done properly,” Brown says.
  1. The act of appending is not covered under CASL. It is likely covered under privacy laws, particularly if you are making changes to PII footprint without consent.  There may be some situations where appending data is allowed under CASL.   If you have a business relationship – e.g. purchases in the past year – then this append may be in compliance with the CASL legislation.
• Mobile Access.  No one anticipates that certain one-off situations will be covered under CASL (e.g.: a US citizen goes to a coffee shop in Toronto and checks his Gmail account).  Brown expects that the government also did not intend to the law to apply to Blackberry users worldwide when accessing email (e.g., through RIM servers located in Canada).   “I think the intention is not to apply the legislation so broadly,” he said.  It’s not clear how data centers for companies that are not Canadian based will be treated – although Brown expects that they will need to comply just as if the entire company was based in Canada. Messages sent from those centers will be “Canadian” under this law.

• The product being announced can and likely will be very useful.
• The social sharing buttons at the top.
• A very simple call to action.
• The “know what you’re looking for? Jump right to it” section.
• The headline and supporting copy gets straight to the point. Nice job.

• First and foremost: I’m not a student or an entry-level grad. And LinkedIn knows that. The message is for these people, not “Hey, if you’re looking for interns, we have this new portal.”
• The guy is clearly too old to be in the demographic they’re looking for.
• The blueprints of the cars, while cool, doesn’t really match the “start blazing your trail” meme in this email. Imagery that speaks to trailblazing and paths would be much more effective, in my opinion.
• A clear-cut CAN-SPAM violation, with no mailing address to be found in the message.

• In the EU, starting in May 2011, dropping and accessing a tracking mechanism like a cookie will become illegal without explicit permission to do such.
• US legislators might attempt another go at federal privacy legislation in 2011 which would require an opt-in to collect and process data.
• By the end of this year, Canada is looking at putting into place an anti-spam law that will make the sending of "spam" illegal and prosecutable.

1. Online Privacy Protection Bill:  A “Discussion Draft” of a bill to require notice and consent to any individual PRIOR to collecting or using personal information was released in early May in the US House of Representatives from Representatives Rick Boucher (D-VA) and Cliff Stearns (R-FL).  Industry and consumer groups alike are not happy with the draft, including the DMA.  Although it may seem at first that the so-called Boucher Bill was just about online behavioral advertising conducted by large marketers; it turns out that it’s very broad and far-reaching on privacy and data security.  During the webinar, Jerry Cerasale, VP, Government Relations for the DMA, gave a very good overview of coverage, exceptions and terms of notice.  Basically, it impacts nearly all kinds of “first party” senders as well as any other company that has access to that data as a “third party.”  It proposes coverage of an extensive list of “unique and persistent” personal data on consumers.
   
   “One potentially bad impact this could have on the email industry concerns the scope of covered data, including email address, IP address, and other unique, persistent identifiers,” says panelist Tom Bartel, CIPP, VP, Receiver Services at Return Path.  “If the exceptions for transactional and operational purposes and for service providers are not effective and clear, this bill could interfere with many industry collaborations.  This includes IP-based reputation systems – data that determines if email messages reach the inbox or not.  It may also impact the operation of Feedback Loops provided to email senders by mailbox providers like Yahoo! and Hotmail.  These feedback loops are a key component in how the industry keeps bad actors out of the email ecosystem."
   
   Both Representatives Boucher and Stearns have indicated a willingness to work with industry and have requested comments on the bill, due by June 4th.  Cerasale said the DMA will be commenting.
    
2. Expansion of FTC Powers: Congress is also considering significantly expanding the powers of the FTC as part of the Wall Street Reform and Consumer Protection Act (HR 4173).  There is not a corresponding bill in the Senate, although Cerasale said in the webinar that one may be introduced later this year. 
   
   Part of the proposed regulation would give the FTC “unbridled authority” to create rules around “unfair or deceptive acts or practices” for many industry sectors.  Cerasale expressed concern about this, and said that more checks and balances are needed.  It is also unclear how this expansion will impact emerging technologies like social or mobile, he said.
   
   Another part of the proposed bill increases the FTC’s enforcement powers to seek civil penalties.  “That may be helpful in catching spammers and other abusers of email marketing,” said Rick Buck, CIPP and VP, ISP Relations and Privacy at e-Dialog.  “Marketers who feel they are exempt from prosecution because they are legal under CAN-SPAM may be following the letter of the law, but not the spirit.  I encourage everyone to go beyond the legal requirements and aim to provide email experiences that are welcome and engaging to subscribers.”
   
   The FTC’s Greisman said only that, “We welcome any support from Congress that helps the agency be more effective and efficient.”  There are some “tools that we lack which Congress may grant us the power to use,” she said.
   
   A third element to this proposed legislation is on responsibility/liability of the delivery provider (broadcast vendor, ESP, MTA Vendor) if their clients do not follow CAN-SPAM or other regulations.  “This aiding and abetting aspect is very concerning,” said webinar panelist, Dennis Dayman, VP, Privacy & Online Security at Eloqua.  “Blurring the lines between purveyor and sender may place an undue penalty on others in the ‘chain of responsibility’ for all brands involved in online advertising or other online acquisition efforts, like third party email senders and publishers,” Dayman said.

Greisman also reported in the webinar that there is no significant update on the behavioral targeting protection guidelines that the FTC has had out for comment for over a year. “Nothing will happen without input from industry,” she said.  Since the mandate from the FTC has been, “self regulate or else,” the webinar panelists Buck, Bartel and Dayman had a number of suggestions for marketers to follow best practices, including:

1. Ensure transparency in disclosure and notice of permission and use of data.
2. Be very clear about opt out vs. opt in.  CAN-SPAM requires only an opt-out, but that is the “bare minimum,” Buck advises.
3. Update your Privacy Policy and provide prominent links.
4. Audit your data usage practices.
5. Be clear on use of data in all web forms and at the point of collection/sign up.

Marketers and everyone in the email industry can support the FTC, Greisman said.  She suggests:

1. File a complaint.  When those complaints are also referred by the DMA, they are particularly helpful, Greisman said.
2. Make sure your opt out mechanisms are working.  (e-Dialog’s Buck recommends checking this at least annually, and preferably monthly.)
3. Be clear about the sender and the advertiser relationships.  (Return Path’s Bartel recommends first party senders consider “framing” the content from third parties or advertisers and clearly distinguish between editorial (original content) and advertising.)
4. Keep data clean, particularly around new sources.  (Eloqua’s Dayman also recommends care around affiliates’ use of data.)

The legislative update webinar was sponsored by Eloqua, e-Dialog and Return Path, with technology sponsor GoToWebinar.  The recording of the full event is free for eec members.  More details on these and other legislative issues important to digital and direct marketers is in the DMA’s quarterly government affairs newsletter, Politically Direct.

- Stephanie Miller
Return Path & eec

This week Facebook will begin giving marketers the ability to collect email address from users of our Facebook applications.  This is welcome news and opens up a world of possibilities for creating integrated programs that leverage the strengths of each channel to drive business objectives and richer customer experiences.  Currently, applications communicate with users through Facebook notifications - a constrained inbox with few opportunities for meaningful direct communications and limited opportunities for monetization.  After Wednesday, marketers will have the ability to make email permission optional, or a mandatory requirement of an application, and may no longer post notifications from applications.  This development opens up an exciting new way for Facebook marketers to interact with and ultimately monetize social audiences.  

An example of the optional prompt:


 

And mandatory:


Facbook will be supporting this change by encouraging users to share their email addresses with applications, and will be posting dialog boxes like the one below on every canvas page a user visits for their first three sessions.


 

On the Developer wiki, Facebook clearly articulates the policies senders must adhere to:

Draft Policies

a. You must not give or sell users' email addresses to any third party or affiliate.
b. You must comply with the provisions of the Federal Trade Commission's CAN-SPAM Act and all other applicable spam laws (e.g., provide a visible and operable unsubscribe mechanism and honor opt-out requests within 10 days).
c. You must explain clearly to users, in a privacy policy or elsewhere in a conspicuous place, how you will use their email addresses.
d. Emails you send must clearly indicate that they are from you and must not appear to be from Facebook or anyone else. For example, you must not include Facebook logos or brand assets in your emails, and you must not mention Facebook in the subject line, "from" line, or body header.
e. All emails to users must originate from the same domain, and you must provide us with the name of that domain in the Facebook Developer application used to manage your application.

As we kick off 2010, it's hard to argue that the most exciting force in the email marketing space is the rapid adoption of social networks and the opportunities that exist for those who are able to develop truly integrated programs.  Much has been written in this blog about social media, and though virtually everyone is excited by the possibilities, most of us are still in the relatively early phases of determining the best strategies and tactics for our programs.  Few in the space can point to quantifiable success stories.  This development gives social marketers a powerful, proven tool for engaging and monetizing audiences, and I look forward to seeing how we capitalize on the opportunity.

Read more on the Facebook Developer Wiki and please comment below or reach out to me directly to continue the conversation - 2010 is going to be a big one for email [the original and largest social network].

- Nicholas Einstein
Director of Strategic & Analytic Services
Datran Media

The internet was designed to be a free exchange of information wherein anyone, upon a loose framework mainly having to do with networking and rendering capabilities, could join, share and digest what they wanted. Email was developed as a predecessor to the internet.  Again, one in which, as long as you had the most basic SMTP compliancy between networks, messages would be handed off between point A to B.

Today, email has turned into a monumentally powerful marketing tool and communication channel that still rivals the internet and other upcoming social networks, regardless of which side of the "email is dying" debate you fall under. With email marketing, forward to a friend, sharing links, email filters and forwarders, along with major ISPs providing outsourcing solutions (like Google Apps), the audit trail of an email is sometimes all but impossible to decipher without CSI level forensic header analysis.

But, you don't care about all this.


What should you care about?

When you place an order to have something delivered with the USPS, UPS or FedEx, that item almost never leaves that company's chain of custody.  Meaning, if you dropped it off with FedEx, the recipient will most likely receive it with FedEx.  Again, there are exceptions, but the vast majority of the time this is the rule.  When you send an email out, though, it may be going to a Yahoo! domain address, then forwarded on to a Gmail domain address and finally rendered in Outlook 2007.  What can you do to ensure that your mail has the highest rate of making it to its final destination regardless of the cyber hops in the middle?

1. Ask your recipient up front if their email address is still, indeed, the right one to be using. I check over 8 different email accounts on a normal day, and with inbox email aggregators with dynamic collection addresses (such as OtherInbox), I probably have several hundred email addresses (with OtherInBox I can use disposable email addresses) that will get to me somehow.  However, the email address to sign up with your service when I was a fresh college grad and using my Alumni account may no longer be at the top of my list.  So, I appreciate it when companies I do business with ask me if that's still the one I should have on my account.  If it is, I click through on a prompt when I login.  If not, it takes 2 seconds to change.  I don't get asked this every time I login, but perhaps, every 6 months or so to ensure the email address is fresh.  Guess what?  My Alumni account is forwarded to my Yahoo! account.  So, I changed it to have my Yahoo! account receive the email directly (and thus avoid any errant filtering on the part of my school).

2. Authenticate outbound email. Period. DKIM was designed not to break when making multiple hops in an email's path to the final destination.  Unfortunately SPF will because of the technical nature of email headers, but with DKIM enabled mail, if it comes through at Gmail verified and then is forwarded on to AOL, the DKIM signature stays intact and the message has a higher likelihood of being delivered.

3. Here's the bad part.  Just like you as a sender pushing mail out to a recipient, when email is forwarded to another domain by the recipient domain, the reputation and deliverability of that mail falls back on the ISP doing the forwarding.  For instance, I run my own domain hosted through Gmail.  When you send an email there, it gets forwarded to Yahoo! which is what I consider my central email nervous system.  But, sometimes, email from Gmail gets bulked at Yahoo! because of Gmail's reputation.  This means I don't get my mail.  What can you do about it?  Gently remind your subscribers to check their spam folders for mail that may have accidentally fallen prey to a filter somewhere.  In my case, I'll get email that randomly gets bulked (as opposed to breaking any obvious best sending practices) and have made it a habit to check my spam folder often.

4. Check your content in multiple web clients. Oftentimes, an email sent to a Comcast domain looks fantastic, but when forwarded to an AOL accounts, looks horrible.  Now, like in #3, a lot of this is out of your control if the actual content is changed en route by the ISP.  But, if you ensure that your content looks good in the different clients, you increase your chances that when an ISP doesn't reach in and play with the HTML when it's being forwarded along, it will look fine in the end email inbox.

5. Have unique identifiers in your unsubscribe links tying an email address back to a particular sender.  If I unsubscribe from my Yahoo! address on an email that was sent to me originally at a Gmail account but was forwarded on, you could end up shooting yourself in the proverbial foot.  I could have any wanted email to my Yahoo! account stop but the Gmail email continue.  Recipients will oftentimes setup multiple email addresses for one account, or across multiple accounts you as an ESP or single sender support, so directly tying that recipient's unsubscribed email address to their preferences (and not the one that happened to actually do the unsubscribing) is key.

This is pretty technical stuff, folks.  But, in order to stay on top of the original intent of email being free flowing and having as few barriers as possible, you must be cognizant of the challenges in your path.  Reach out to your technical team to ensure you've got these points covered.  And remember, an email address is easily disposable.  We, as marketers, tend to see them as having high stickiness.  But, recipients can come and go with fluidity and tracking them along the way with their permission (ultimately their keeping you informed of their moves) keeps you in touch with your customers.

Chris Wheeler
Director of Deliverability
Bronto Software
@ChrisAWheeler

Not every email marketing best practice is an obvious one. In fact, in our experience at ClickMail Marketing, there are quite a few best practices that companies seem to look over or deliberately ignore. The result? The opposite of best practices, or what we kindly call "common email marketing mistakes" rather than worst practices.

In an industry where a half a percentage point can make or break a campaign, it's our opinion that tweaking and optimizing every possible factor is worth the effort. With that in mind, I asked our staff to compile a list of the top 10 mistakes they see when deploying email campaigns on behalf of clients. The good news is that they only came up with nine. And the even better news is that these are all easy best practices to adapt and adhere to.

Below are the common mistakes seen by the staff at ClickMail, and what you can do to avoid them:

Common email marketing mistake #1: Sloppy Copy

• Check your spelling. Copy and paste into Word and run spell-check if you need to. Also check the spelling in your links. If your URL is wrong, so are you.
• Read the copy. Don't scam, skim or skip over. Reading is the only way to ensure proper use of language like "their" vs. "there" vs. "they're", missing words, incorrect punctuation or poor sentence structure. Best practice: Print it out to read on paper. Even better best practice: Read it out loud.
• Employ a second set of eyes for final review. Once you've written, read and edited the same piece of content many times, it is no longer fresh to you and errors are easily overlooked. Ask someone else to run spell check and read the copy. You may be surprised to see what you missed.

Common email marketing mistake #2: Crummy Coding

• Set the pixel width to 600. This prevents the need to scroll to the right—and the potential to lose interest if someone feels they have to do too much work to read your email.
• Don't use CSS (Cascading Style Sheets) in your HTML coding. It is stripped out by many ESPs, meaning your message can be lost. Even if you've spell checked it and done all the best practices described above!
• Many ESPs also suppress images by default, as do email clients (about 80%). Do not create your email message out of one big image or your subscribers may only see a blank page with a little, tiny red X. If you use any images, to be on the safe side, utilize a View Online feature so they have another way to see images if they are suppressed.

Common email marketing mistake #3: Cold Calls to Action

• Your call to action (CTA) should be in text format, not an image because—as mentioned above—images are suppressed by default by many email service providers and email clients.
• Include two to three instances of your CTA above the fold (in the first 300 pixels). Make sure to include at least one graphical and one textual CTA.
• The top one-third and the left-most area of your emails are the most valuable real estate. Try to place a CTA those areas, in text and as minimal images.

Common email marketing mistake #4: Poor Subject Lines

Your subject line should be seven words or less (or 35 characters). Most people know this but might not know that the following conditions in a subject line can be flagged as SPAM:

• Percent of Capital Letters: Too many uppercase letters compared to lowercase letters
• Repeating Capital Letter: Too many upper case letters in a row (e.g., SALE)
• Gaps: When the words have gaps between letters like s*t*y*l*e
• Repetition: When letters or characters are repeated (*****)
• Special Character Flag: Overuse of special characters (e.g., & $ # @ ( )[ ] !)
• Punctuation Flag: Too much punctuation (…) or the type of punctuation (!)
• Word/Space Ratio: Spammers use blank spaces to catch the recipient's attention resulting in a high ratio of spaces to words
• First Character Flag/First Word Flag: Subject lines starting with a special character or punctuation. Words like "Free", "hey", "Sale" etc.

Common email marketing mistake #5: Obscure "From" Label

Your From address is key information used by subscribers to determine if your email is spam or not. If it's not relevant or recognizable, they may mark it as spam, or just delete it without opening it.

Common email marketing mistake #6: Floating From Address and/or Domain

Keep a static "From" address and/or domain, and ask to be added to the recipient's Safe Sender list at the top of each email.

Common email marketing mistake #7: Lazy Lists

• Utilize the Forward to a Friend (FTF) feature to organically grow your list.
• Practice good and consistent list hygiene. Most people know to honor opt outs in 10 days to be CAN-SPAM compliant but you should also clean your list(s) of hard bounces after each send, plus monitor soft bounces and remove from your list as needed.

Common email marketing mistake #8: Competing Links

Don't include competing links, period. Unless it's a newsletter, most emails should be single subject with a single call to action. If it's a sale, link to the appropriate sale items. If it's an invitation, link to the registration page etc.

Common email marketing mistake #9: Unfair Unsubscribe

The unsubscribe link must be the first step, per CAN-SPAM. Don't make people jump through hoops to opt out.

Now, I hope you read the nine common email marketing mistakes above and nodded your head in agreement, confident you're innocent of all.  If not, if even one of those nine listed tripped you up, go fix it now and increase your ROI later as a result.

- Marco Marini, President & CEO, ClickMail Marketing

Marco Marini is an acknowledged expert in e-marketing with over a decade and half's-worth of experience in the field. Before taking over as CEO, he was CMM's VP of Marketing & Operations. Marini has also held key marketing positions with CyberSource, eHealthInsurance, DoveBid and IBM Canada.

Gmail reported in their blog this week that they have developed a way to provide their users with an opportunity to report spam and/or unsubscribe from emails they receive in their Gmail accounts. The article, titled "Unsubscribing Made Easy" is a positive change for Gmail, but still falls short of where most legitimate senders want to see.

Like many complaint feedback loops (also known as FBL's) offered by a number of ISPs, Gmail's new functionality is mostly a good thing. I applaud their effort, and it certainly helps when there is this cooperation and transparency in the sender/receiver relationship. It is better for everyone. This is why the Abuse Reporting Format was met with applause by senders when it arrived a few years back.

Here are the good parts. First, Gmail's new feature provides the subscriber with a chance to mark a message as spam, which should allow Gmail to better filter their email. Second, in addition to the option to just report spam, the end user may also choose to "unsubscribe and report spam." This second option apparently is just provided when Gmail deems the sender to be reputable. See the image below for an idea on what the subscriber sees.

In his blog, Brad Taylor outlines the reasons Gmail pursued the development of this new feature.

"For those of you senders who are interested in this feature, the most basic requirements are including a standard "List-Unsubscribe" header in your email with a "mailto" URL and, of course, honoring requests from users wishing to unsubscribe. You'll also need to follow good sending practices, which in a nutshell means not sending unwanted email (see our bulk sending guidelines for more information).

With an easy way to unsubscribe, everybody wins. Your spam folder is smaller, and senders don't waste time sending you email that you no longer want.

Update (1:50pm): If you want to unsubscribe without reporting the message as spam, click "show details" in the top-right corner of the message, then click "Unsubscribe from this sender."

It is this piece that leads me to a bit of concern on the implementation. If Gmail is doing their usual checks on authentication, reputation, content etc. to determine which senders are legitimate, why then force the end-user to either mark something as spam, or go through "show details" (which nearly no one will do) to unsubscribe? Why not also provide an unsubscribe button on the interface in addition to the "report spam" button?
I can understand why Gmail would forgo providing the email address back to the sender at the user's discretion. However, even the FTC has a study showing that unsubscribing from spam doesn't really lead to more spam. In the FTC's 2002 study, they report that "In no instance did we find that any of our unique email accounts received more spam after attempting to unsubscribe."

Gmail has the opportunity to educate their subscribers on legitimate and unsolicited email. Why not provide just an "unsubscribe" button for legitimate senders, and explain why they are doing it, rather than propagating the unfounded fear of unsubscribing?
Also, other ISPs have gotten around this privacy concern by not passing back the actual email address back to the sender. Many senders use other forensics to determine which subscriber complained so that this subscriber can be removed from the list.

Engagement Matters
We advise clients to look at all sorts of engagement metrics, and unsubscribes and complaints are equally as important as opens and clicks. When possible, I'd like to know the ultimate intent of the subscriber when they choose to get off of a list. I always say I'd rather have someone unsubscribe from my email than ignore me.

As for which email this is enabled for and which not, the folks over at Word to the Wise looked at this a bit deeper and do some testing. They found that:
"Conditions where the unsubscribe option is presented include:

• The mail is authenticated
• The sender has a good reputation
• The email has a mailto: option in the List-Unsubscribe header
• The recipients marks the message as spam"
  

Read more about their tests here http://blog.exacttarget.com/blog/the-exacttarget-blog/0/0/gmail-offering-unsubscribe-option or here http://blog.wordtothewise.com/2009/07/gmail-offering-unsubscribe-option/.

Either way, legitimate senders do benefit from this, but it is fun to dream of having both unsubscribe and report spam options available to subscribers.

- Chip House, Vice President, Industry & Relationship Marketing, ExactTarget

Chip is responsible for industry research and relations, and owns the targeted marketing programs that ensure the satisfaction and success of ExactTarget's client base.  Chip also manages the teams responsible for marketing research, deliverability compliance, and privacy initiatives.  As an established industry leader, Chip writes regularly for online marketing publications and was named to BtoB Magazine's 2005 "Who's Who in B-To-B" for being a vocal proponent of legitimate commercial email. Chip brings 20 years of direct marketing and twelve years of internet marketing experience to ExactTarget.

Though growing your email database takes time and effort, when done correctly, it will house your most qualified and responsive leads. A well structured email database will enable you to boost sales with more targeted messages and offers, extend the lifecycle of any campaign and increase customer retention with regular and relevant communications.

Consider the following techniques to acquire new leads and grow your email list with success:

1. Who is your ideal lead and how do you reach them? Create a profile for your best customer(s). This should include things such as age, gender, hobbies, job function, how they shop (online or at stores), where they shop, what they read, what websites they visit, etc. Depending on the product or service you are marketing, some of the above will be more relevant than others. For example, if you are marketing a clothing line, job function will be less relevant than where and how they shop, where as if you are marketing a trade publication, job function and industry will be extremely important.

2. Analyze your competition. Take some time to find out what your competitors are doing to build their email lists. Start off by going to their websites. Then do a web search on your competition as well as relevant key words, and take note of any banners / CPC ads that appear. Be sure to click through to check out what their landing pages look like and what type of information they are choosing to capture. If they have an e-newsletter, sign up for it. This is an easy way to start receiving their email campaigns. All of these steps will help you find out what type of promotions they are running, any marketing alliances they have formed, and how they are positioning their product or service.

3. Reach your best customer. Once you've created your customer profile(s) and finished your competitive analysis, you are ready to develop your list growth strategy. Your strategy can include initiatives such as: banner ads on websites that your target audience visits, a PPC campaign, direct mail or email campaigns to magazine subscriber opt-in lists, etc. You can also approach other products or service providers for co-promotions or mutually beneficial partnerships. Starting an e-newsletter or a blog for your company are great ways to grow your list as long as your content is desirable. The lifecycle of any campaign can be extended with behavior-based trigger emails.

4. Your offer is everything! Unless your offer is relevant to the recipient, they will not respond to your campaign. Your offer will need to prompt the recipient to make a purchase or willingly give you their information in exchange for something they want. For instance, you might send an email introducing your company to a magazine subscriber opt-in list that you know your target audience reads. By including a free downloadable premium such as an industry salary guide, a list of the hottest bars in town, or a best practices whitepaper – what ever might be most relevant to your target audience – recipients will need to provide their email address and demographic information in order to download the premium. Once you've captured their information and they've opted-in to your database, you will be able to communicate with that lead on an ongoing basis.

5. Your offer is almost everything! Unless the recipients receive your email, they cannot receive your offer. Therefore, be sure to comply with email marketing best practices: include a physical mailing address, an opt-out link and a subject line that reflects the content in your email. Also, when writing your email, try to stay away from words that are flagged by spam filters.

6. Create a landing page. It is extremely important to guide the campaign recipient through the entire process. By creating a landing page on your website that mirrors your campaign's message / offer, you will encourage the recipient to fill out the form with the ultimate goal of opting-in to your list.

7. Use a lead capture form. Your landing page can either link to a lead capture form or you can embed the form in the landing page itself.
a. Since people are more prone to filling out a short form than a long and drawn out questionnaire, limit the amount of information you are asking them to provide in exchange for their premium. Besides the basic name and email address, think of including one or two other demographic questions. These questions should be well thought out to provide you with information you can leverage for future email campaigns.
b. In addition to the demographic questions, your form should include a check box giving people the option to opt-in to your mailing list and receive information about your company and future promotions. According to the CAN-SPAM Act, if people do not explicitly say that they would like to receive emails from you in the future, it is unlawful to send them commercial marketing emails.
c. If you do not currently have a way to capture leads, an easy way to do this is through your email service provider. Most ESPs will provide you with both the lead capture form and a database to house the acquired leads. They will also manage your opt-outs for you.

8. Track your efforts. If you track your list building efforts, you will be able to pinpoint which initiatives are working the best and focus more of your energy on those. You might decide that others aren't worth your time. Easy ways to track your initiatives are:
a. Web Analytics: sign up for a free Google Analytics account. This will enable you to track how many people are visiting each page on your site and which campaign they are coming from.
b. In your lead capture form, include one question asking people how they heard about you with a drop down menu where customers can select from a list of your current list building initiatives.
c. Landing Pages: create a separate landing page for each marketing initiative so you can track page visits to these dedicated pages through your web analytics account.
d. Dedicated 800 numbers: there are services that will provide you with a range of 800 numbers that redirect to your main phone number. Including a dedicated 800 number on each landing page will enable you to associate each call with a specific campaign.

Remember, even if you are accurately targeting your best customer, your campaign will only be a success if you get them to act on your offer and opt-in to your database. Be sure to spend enough time tailoring your message and the offer to the people who will be receiving your campaign.

- Yael K. Penn, Founder and Principal, Imagine 360 Marketing

During the eec List Growth & Engagement Roundtable meeting this week, several DMA/eec members had a fascinating conversation about how to define consumer intent under CAN-SPAM as it relates to opt out for third party messages. The rules amended to CAN-SPAM which went into effect in July of 2008 say that there only needs to be one opt-out per message, and provides some guidance on the definition of the "sender" and "primary sender."

"Listen" in with me….

Arend Henderson of Q Interactive, an online consumer site that has a very large email list rental business: It's about the permission grant. If the message is from PublisherA, and the Friendly from is the publisher, along with the message header and footer – and significantly, the permission grant is with the publisher; but then the full message promotes AdvertiserB, then the opt out under CAN-SPAM should be from the sender and list owner, who is PublisherA.

Stephanie Miller (me) of Return Path, an email deliverability and performance company: The panel of privacy experts who spoke at the recent eec/DMA webinar with the FTC interpret the legislation that the opt out should be provided by the advertiser.

Arend: We interpret this as a protection of the consumer interest. We, the publisher, own the list, we own the relationship, and we care about those relationships. We believe that the opt out should be from the publisher, not the advertiser. It's our job to send subscribers messages.

Kim Santos, Reader's Digest: I feel the opposite. The opt-out has to be on the side of the advertiser. In list rental, where the advertiser is the sole focus of the message, that is what drives the unsubscribe request. If I'm a consumer, then I don't want the AdvertiserB advertisement. The subscriber wants out of the AdvertiserB messages. If the opt out is only with PublisherA, then AdvertiserB could just go rent another list from another publisher. It's a penalty for those subscribers who are on a lot of lists.

Arend: We feel strongly that the message is not from AdvertiserB. The permission grant is with us, the publisher.

Luke Glasner of Rodman Publishing: If you want to opt-out from AdvertiserB, you should be able to opt-out of those specific messages of the advertiser from PublisherA. The publisher like Rodman provides the opt out and we offer to manage the suppression file for advertisers who rent from us multiple times. Also for first time users we request suppression files - and we don't charge extra for them. Personally, I don't think list renters should charge to run a suppression file - since the person that benefits the most from reducing spam complaints is the list owner, even more so than the consumer of that email. It's not about protecting consumers from AdvertiserB in other areas of the Internet. If I walk around and see an AdvertiserB billboard, does that violate the opt-out? Does my email opt-out mean that I won't ever see an ad on the street or on TV or on a website?

Kim: No of course not, but there is so much transparency in email than in other channels. You can't suppress ads in those other channels, but in email you can. I as a publisher and someone who cares about my subscribers have a responsibility to protect my consumer. So I make sure that if you don't want to see AdvertiserB ads, you won't see them from me, ever.

Luke: I can only be responsible for my email program, not actions of every person that engages in online advertising. I do feel we have a duty to respect our readers and to give them control over their inbox. It is up the subscriber to tell me how much they want to engage with me. And it is up to me to respect their wishes. I think that email is privilege granted to senders by their subscribes not a right. Based on my experience I think that most consumers would agree with that.

Kim: What about when there are two opt-outs? One each for the advertiser and for the publisher? We often see that, and sometimes offer it.

Arend: Consumers don't think in our terms, they don't know why there are two opt-outs. They don't know who is "sender" under the law. This is why we never let the advertiser put AdvertiserB in the friendly from line. The messages come from Q Interactive, which is the brand you know and gave a permission grant to.

Luke: I will tell you what consumers do when they see two unsubscribe links. They go to the top of the message and click the Report Spam button. They won't bother to figure it out. It's not worth it to us as a list owner to work with advertisers who drive a lot of unsubscribe requests or complaints (when someone clicks the Report Spam button).

Arend: We agree. We do not work with those kinds of advertisers at all or at least for very long.

Luke: And the other side is true as well. Sometimes, the person who is sending this message and the sales person at the list owner have different agendas. If you are a buyer, be sure that the list owner can actually do what they promise.

Kim: We view this as a partnership. We want our advertisers to succeed. We had to put in an actual, official corporate marketing role so that we have an ombudsman around this area. That has helped to eliminate confusion.

Stephanie: How do you handle newsletters with multiple ads?

Kim: We treat these differently than full page email broadcasts. In this case, the opt-out is with Reader's Digest, the sender.

Arend: We do the same thing.

Luke: We also follow the same for our newsletters. An email newsletter's purpose is to provide (hopefully) engaging content to the reader. We support the newsletter financially by selling ad space so we can continue to provide our readers with newsletters.

- Stephanie Miller, Return Path

In last week's eec/DMA webinar, Peder Magee, Esq., FTC Privacy and Theft attorney for the Bureau of Consumer Protection joined DMA's VP of Government Affairs, Jerry Cerasale, and a panel of email privacy experts to discuss the latest thinking at the agency.

For now, that stance seems to suggest that the self regulation of the industry is working. Magee noted that some concepts "transcend the medium" when it comes to self regulation. "Transparency, prominent notice, use of personal data, and providing the ability to opt out easily" all are areas the FTC continues to watch.

Certification and feedback loop programs were noted by panelist Tom Bartel, CPO of Return Path, as an example of how the industry cooperates in order to make self regulation work. Especially for certification programs, "Email marketers put themselves forward voluntarily to be held to high standards," Bartel says. "Including the things Peder listed about prominence. Once they are vouched for by the third party, the ISPs can make good decisions about what to do with email from those senders.

"Participation in these programs shows marketers are willing to go way past the law, and well past best practices," Bartel states.

The FTC remains aggressive about prosecuting offenders under CAN-SPAM. Magee says, "CAN-SPAM and some of the filtering technologies have reduced the spam that consumers were getting a lot more of." He notes that the agency also brings cases against phishing scams, often initiated through email. Webinar moderator and DMA VP of Government Affairs Jerry Cerasale noted, "The FTC is the most active regulatory body in this area. Opt-in laws in Europe have not resulted in as many cases as the FTC."

Download the recording (free until this Thursday) and read the summary of the event.

More heartbreaking news from a study that drills into a critical aspect of email marketing: the unsubscribe process. Apparently, some very smart marketers are not giving the unsubscribe the attention it needs as a valid part of their customers' holistic email brand experience.

Return Path's new study Keeping the Subscriber Experience Positive After "Unsubscribe Me" found that marketers may be considering the unsubscribe process as more of an afterthought vs. giving it the attention that it deserves (and that is required by law).

We found that 20% of top brand marketers sent additional emails to subscribers after confirming an unsubscribe request, and 11% of the companies studied emailed subscribers more than 10 days after confirming an unsubscribe request—a violation of the federal CAN-SPAM Act.

But here's one stat that definitely caught my attention—only 2 of the 45 companies we studied offered subscribers the option to change the frequency of their emails. We've discussed over and over again the risk that consumers are too inundated with email and just tune out. If a customer or potential customer is interested in your products but they'd rather hear from you once a month vs. once a week, by all means please give them that option and keep them on your list.

—Stephanie Miller of Return Path

Please help us get the word out about the eec Speakers Bureau by including the following item in your next client newsletter or on your blog:

Email Marketing Experts Available to Speak at Your Next Event

Do you belong to an organization or group whose members could benefit from learning more about email marketing? Then please tell them that the Direct Marketing Association's Email Experience Council wants to help. The eec's Speakers Bureau has experts available across the U.S. and Canada who have committed themselves to helping email marketers maximize their return on investment and avoid pitfalls such as CAN-SPAM violations and being blacklisted. These industry veterans have waived all speakers' fees and can talk on a wide variety of topics, including…

● How Email Compliments Other Channels
● Obeying CAN-SPAM and Other Laws
● Getting and Maintaining Permission
● Ensuring Your Emails Are Delivered
● Growing a Large and Active List
● What to Send to Your Subscribers

To learn more and to request a speaker, please visit the eec's Speakers Bureau.

*Help us spread the word about this initiative by re-running this item in your client newsletter or on your blog. Thank you.

Are the basics of email marketing leaving you stumped? Don't know where to turn with your most pressing email marketing questions? The wait is now over! The Email Experience Council's Member Initiatives Advisory Committee has established a comprehensive list of Email Marketing Q&A's that will assist even the most seasoned email marketing veteran in answering some of the industry's most pressing questions.

Questions range on topics such as permission, deliverability, list rental, Can-Spam requirements, and engaging consumers. From questions such as "Can you give me a list of spammy words to avoid?" to "Do I need to get permission in order to send emails to customers?" there is something interesting for everyone.

Personally, my favorite QA is "Everyone on my list has opted in so why am I getting spam complaints?" The accompanying answer is a solid response to a question asked by many in the email world, but this issue will more than likely forever remain as one that we email marketers will continue to ask, study, and try to solve for ages to come.

By no means are the contributors to the Q&A lawyers or legal advisors but most have been in the trenches of email marketing for long enough to know the answers to the questions everyone wants to know but are too afraid to ask. In addition, many of the answers are accompanied by other valuable resources to further enhance your knowledge on particular subjects.

Not seeing your most burning questions on the list? Send them to us! We'll be continuing to post Q&A's periodically so email us your questions and check back later for the answers.

—eec Members Initiatives Advisory Committee chair Lauren Skena of Epsilon

This 4-hour seminar in New York is part of a ground-breaking series of email compliance-focused events. This specific seminar will cover the LashBack and UnsubCentral processes and deliverables within a framework of educating participants as to the need for comprehensive compliance process as a foundation to successful email marketing and email reputation protection.

Participants will learn the 10 Guidelines of CAN-SPAM compliance, with drill down on unsubscribe compliance, unsubscribe processes including suppression list best practices, the new FTC unsubscribe rule and compliance's overall impact on reputation and deliverability.

Email Compliance: The Foundation of Reputation and Deliverability
Produced by the Email Experience Council and the Direct Marketing Association
Monday, Nov. 3 at 1pm
eec/DMA Seminar Center, New York

Speakers:
John Engler, Vice President and General Manager, UnsubCentral
Bennet Kelley, Esq., Founder, The Internet Law Center
James O'Brien, Director of Marketing, LashBack

This seminar is $99, but eec members can get $20 off using the discount code "eecM."

>>Register Now for this seminar!

The answer…
45% –> Yes, because the new rules didn't require any changes.
34% –> Yes. We've made the necessary changes.
2% –> No, but we're evaluating what changes are needed.
19% –> No. We weren't aware that new CAN-SPAM rules were issued.

Thanks to everyone who participated in this unscientific survey.

Are you surprised by the results? Share your comments below.

Also, visit the eec homepage to answer the latest Two-Click Survey question:
How long is too long to go between sending emails to a subscriber?

–>See more Two-Click Survey Results.

Diving headlong into the world of email creative is tough if you don't have all the lingo down. Here's a handy cheat sheet for those who are still polishing their grasp on the glossaries, and a brush up on definitions and best practices for those who already know their stuff:

(1) The Preheader
These small and subdued text blurbs at the top of your emails are getting more play these days. Particularly as more folks browse their inboxes from mobile devices, this first glimpse of the main message becomes your crucial chance to grab their interest. A preheader informs a recipient of what the email is about, how to view it with images and/or from a mobile device, and how to ensure future delivery via content teaser snippet(s), the "view with images" prompt and/or the "add to address book" prompt. Think about what text snippet you want customers to see first. Probably something a little more engaging than "If you are having trouble viewing this email with images…"

(2) Header and Navigation
This often takes the form of a colored banner and encompasses anything that lies between your preheader and main message. It's the space for your company logo, and—depending on the message content—it may also include menu items that link to other pages of your site, just in case the main message doesn't quite strike the fancy of the viewer.

(3) Primary Message
Your email's big push deserves a lot of attention from you since you're looking to earn the attention of your subscribers. A harmonious balance of headline, body copy and supporting images delivers maximum impact. This should include a prominent primary call-to-action (ideally in the form of a big, beautiful, "bulletproof" button!) and a link to a landing page with a cohesive look and message that will maintain enough interest to turn that clickthrough into a conversion.

(4) Table of Contents
These come in handy for longer, newsletter-form emails that contain tons of content, allowing customers to skip right to what interests them rather than having to scroll all the way down. The TOC works most effectively as a bulleted list at the top of your email that is anchor tagged to hotlink directly to content. Fitting this into your preview pane, along with your primary message and call-to-actions, will also help it gain enough attention to earn its keep.

(5) Submessage(s)
Adding secondary and tertiary messages to your email gives you the opportunity to present another story or two. Just make sure you don't lose your viewers in a maze of information. Keep it clean with visual prompts like color, strong headlines, imagery and graphics. Submessages are usually organized in a siderail or layer-caked below the primary message.

(6) Recovery Module
This is your final outpost, your last chance to capture the clickthrough of anyone who may have sailed through your main message or submessages. The recovery module is often a bar at the bottom of the email that includes a list of links to your site, or potentially an incentive to grab your subscribers' interest before they slip back to their inboxes.

(7) Footer
Using the same sort of subdued, "legalese" text that comprises the header, this is another place to include the essential nuts-and-bolts info. The unsubscribe link is tucked away here along with company contact details, "forward to friend" and customer service links. And of course, make sure it's CAN-SPAM compliant!

Now that you know all the lingo, can you identify all seven message components across these two REI emails?
–> REI Triathalon
–> REI Paddling Newsletter

Talk the talk; walk the walk!

As ever,
Lisa Harmon of Smith-Harmon

–>Read other Make it Pop! posts.

The answer…
42% –> Open rate
13% –> Click rate
18% –> Click-to-open rate
26% –> Conversion rate

Are you surprised by the results? Share your comments below.

Also, visit the eec homepage to answer the latest Two-Click Survey question:
Are you in compliance with the new CAN-SPAM rules that went into effect this month?

–>See more Two-Click Survey Results.

Last week the Federal Trade Commission announced its approval of a "new rule provision under the CAN-SPAM Act," and it was a long time coming—fully 3 years after the Commission first issued the May 2005 discretionary Notice of Proposed Rulemaking (NPRM) that lead up to it.

I'm not going to spend time here going through all the rules and "rulings"—they're relatively straightforward and you can read about them here. Instead, I want to call attention to what I view as the most important victories our industry gained here:

● The FTC preserved the 10 business day opt-out period. In 2005 they had proposed reducing it to only 3 business days.

● The FTC made it easier for marketers to assign a single "Sender" when it comes to "multiple advertiser" campaigns. The perceived "grey area-ness" of law on this issue had been a big concern for many firms.

Concerted industry advocacy—which is so core to the mission of the eec and DMA and their members—played a central role in last week's final outcome. We are also fortunate that the FTC was so open to hearing our views and so interested in learning about the inner-workings of the industry.

More than a hundred of us submitted formal comments to the FTC, and many even met with agency staff to voice our perspectives and concerns about the NPRM in person. And in the official Federal Register notice detailing the new rule provision, the impact of our collaborative efforts is apparent throughout. See for example, on page 81, where the Commission notes:

…the time period for processing opt-out requests required by legitimate commercial emailers varies, and often exceeds three business days depending upon a number of factors, including the size of the business, the existence of third-party marketing agreements, and the maintenance of multiple email databases.

and

Approximately 100 commenters addressed the issue of whether the period for opt-out compliance should be reduced. The vast majority—over 85%—opposed reducing the time frame to less than 10 business days.

Bottom line: Your voice can and does need to be heard to ensure that the email marketing landscape continues to grow and prosper—and that your consumers have the best possible email experiences when doing business with your brands.

The FTC may have issued the last of its CAN-SPAM rules but the members of the eec have a lot more advocating to do. We need to get more ISPs up-and-running with authentication, accreditation and reputation protocols. We need more "unsub" buttons and feedback loops.

My co-chair Robb Walters of Costco Wholesale and I would love to hear your thoughts. What else do we need, and what do you think it will take for us to get there? Comment here or email us, and stay tuned for information about our next Advocacy Roundtable meeting.

—eec Advocacy Roundtable co-chair Jordan Cohen of Goodmail Systems

–>Read other issues of the The Email Advocate.